Transcript: AP CEO Gary Pruitt’s remarks on the Justice Department’s subpoena of AP phone records at the National Press Club

Partial transcript of remarks by Gary Pruitt, President and CEO of the Associated Press, on the Justice Department’s subpoena of AP reporters’ phone records. Pruitt’s speech was delivered at the National Press Club in Washington, D.C. on June 19, 2013.

…Before coming here today to speak, I thought it would be a good idea to get a sense of how the seizure of AP’s phone records by the U.S. Department of Justice was affecting our reporting. And what I learned from our journalists should alarm everyone in this room and I think should alarm everyone in the country.

The actions of the DOJ against AP are already having an impact beyond the specifics of this particular case. Some of our long-time trusted sources have become nervous and anxious about talking to us even about stories that aren’t about national security.

And in some cases, government employees we once checked in with regularly will no longer speak to us by phone and some are reluctant to meet in person.

In one instance, our journalist couldn’t get a law enforcement official to confirm a detail that had been reported by other media.

And I can tell you this chilling effect is not just at AP; it’s happening at other news organizations as well. Journalists from other news organizations have personally told me it has intimated sources from speaking to them.

Now, the government may love this. I suspect they do. But beware the government that loves secrecy too much.

Today, I want to provide you on the latest news from the front on the seizure of AP’s phone records by the Department of Justice, what AP is doing about it, and the implications for us all.

So let me re-cap how all this started…

So on May 7th of last year – 2012 – AP published a story on a foiled plot by an Al Qaeda affiliate in Yemen. Al Qaeda was planning to use a new and more sophisticated bomb to destroy an airliner headed for the United States.

Our story revealed that the CIA had thwarted this attack, which was intended to coincide with the first anniversary of the killing of Osama bin Laden.

Now, that’s a real scoop, and it was broken, incidentally, by two long-time AP national security reporters who shared last year’s Pulitzer Prize for investigative reporting.

It was not, however, a story that was a surprise to the U.S. government. As the story itself pointed out, AP had held the story for 5 days at the government’s request because that sensitive operation was still ongoing. And then only after the administration had reassured us that the national security risk had been allayed – had passed – did we release the story. AP acted responsibly.

So the story was important on its own merits. That’s a big story. Americans had a right to know that such an attack was being plotted and that their government was able to prevent it.

But the story also brought into question a statement made by White House press secretary Jay Carney. Just two weeks earlier, Carney had said “We have no credible information that terrorist organizations, including Al Qaeda, are plotting attacks in the U.S. to coincide with the anniversary of bin Laden’s death.”

Yet, here was AP finding that, in fact, the CIA has been right in the middle of foiling such a plot.

It turns out that the person who was to carry the bomb was a double agent working with the CIA, the Saudis, and the British.

Now, some have argued that AP got the context wrong – that this was never an Al Qaeda plot but a CIA scheme from the outset. I can tell you that interpretation strains credulity. This was an Al Qaeda operation. Al Qaeda constructed the bomb and its agents were working to activate the plan.

So the story received wide attention as you would expect, and soon after, the Department of Justice announced that it was launching a leak investigation and it appointed a U.S. Attorney to take it on.

Now, fast-forward one year. Last month, on Friday, May 10, we received a letter from the Department of Justice informing us that it had secretly seized the records for 21 AP phone lines, which we now know was over a 40-day period around the same time that our story was released.

So this was an unprecedented intrusion into AP’s news-gathering records. We had never seen anything like this before. And it was an intrusion by government officials that was so broad, so overreaching, so secretive that it violated the protected zone that the First Amendment provides journalists in the United States.

We do not dispute that the U.S. government has a right to pursue those who leak classified information, and this administration has prosecuted leakers like no other in the country’s history.

But the Justice Department have rules about how subpoenas that target the press work, and these rules – they date back to the Watergate era. And they require that any demand of the press be as narrowly drawn as possible and they also require that news organizations be notified of a subpoena in advance, giving them time to appeal in courts, unless doing so – unless giving notice would substantially impair the integrity of the investigation.

In the sweep-up of the AP’s phone records, DOJ leadership violated its own rules.

First, the subpoena was not focused as narrowly as possible. It was over broad. The telephone records seized included not only the work and personal numbers of the individual AP journalists but included general AP numbers in New York, Washington, and Hartford, Connecticut. It also included the main phone number at the U.S. House of Representatives press gallery and it included ingoing and outgoing calls. And these were not just the phone lines of our investigative team; they were the general office numbers – general switchboard numbers – that where more than 100 reporters work – reporters and editors work. Thousands of phone calls were swept up by this subpoena by our own account.

Among the AP phone records taken by the DOJ was the switchboard number of a number of locations …while they got the switchboard numbers, they also got a broad sweep beyond just active numbers. They got a switchboard number for our DC bureau from more than six years ago that we had vacated, that was no longer being used. They subpoenaed a line that belonged to a reporter that worked in Hartford nearly seven years ago.

So we do not regard this as focused in any way or narrowly tailored.

The sweep of the records, of course, you’re thinking today that sounds kind of minor compared to what we’ve now learned the National Security Agency has collected. You know, after all, they’ve got the entire country’s phone records.

But this is different. The DOJ was collecting AP records – they’re not collecting these records just to load them in some database. This was a specific criminal investigation. They have a dedicated team of prosecutors pouring over these records to locate the source of AP reporting. And in doing so, they’re accessing a broad swath of other news-gathering information that’s protected by the First Amendment against precisely this type of intrusion.

Now, the second way the Department of Justice violated its own rules was in executing the subpoena without notice to AP, which meant we could not seek judicial review.

The DOJ claimed the exception apply here, that if they had notified us, it would have substantially impaired their investigation.

But, you know, how could that be? AP couldn’t tamper with these records. We don’t even have them in our possession. These records are maintained by the phone service providers, by the phone carriers.

The DOJ claims that by notifying AP, if they had notified us, it would have tipped off the leaker. But the leaker certainly already knew of this investigation. It was publicly announced. The FBI Director Robert Mueller publicly announced this investigation nine days after our story ran. Furthermore, that kind of reasoning from Justice about tipping off leakers would apply in every single case. The press would therefore never be given notice, never be able to go to courts to have them involved, the exception would effectively swallow the rule.

Had DOJ come to us in advance, we could have helped them narrow the scope of the subpoena. And if DOJ and AP didn’t agree, then a court could decide which was right. There was never that opportunity. Instead the DOJ acted as judge, jury, and executioner in private, in secret.

The DOJ may well have been acting in good faith. I give them the benefit of the doubt. But I suspect they got so single-mindedly focused on the leak investigation that they overlooked the First Amendment implications of their actions.

The DOJ has our records and they’ve probably already used them as part of their investigation. So we can’t un-ring that bell.

But I’m pleased to tell you that the Justice Department has given us assurances that our phone records have been and will continue to be walled off and protected and use for no other purpose than the leak investigation. And we appreciate those assurances from DOJ. It doesn’t excuse what they did and we want to make sure that it doesn’t happen again.

President Obama has asked Attorney General Eric Holder for recommendations by July 12 on the Justice Department’s regulations in this area. And to that end, Justice has been consulting with a number of news organizations and public interest groups and First Amendment lawyers.

Meanwhile, in Congress, there’s been renewed support for a federal shield law that could protect reporters from having to reveal their sources and this would extend to the federal realm of laws that already exist in more than 30 states. The White House has expressed support for such legislation.

Now, AP believes that the following five measures are imperative to give meaning to the rights spelled out in the First Amendment.

First, we want the Justice Department to recognize the right of the press to advance notice and a chance to be heard before its records are taken by the government. This would have given AP the chance to point out the many failings of the subpoena. We believe notice was required under the existing regulations. Now, if DOJ sees it differently, then the regulations should be strengthened to remove any doubt.

Second, we want judicial oversight. We need to ensure that proper checks and balances are maintained. In the AP phone records case, the Justice Department determined on its own that advance notice could be skipped with no check from any other branch of government. Denying constitutional rights by executive fiat is not how this government should work.

Third, we want the DOJ’s guidelines updated to bring them into the 21st century. The guidelines were created before the Internet era. They didn’t foresee e-mails or text messages. The guidelines need to ensure that the protections afforded journalists encompass all forms of communication.

Fourth, we want a federal shield law enacted with teeth in it that will protect reporters from such unilateral and secret government action.

And fifth, we want the department to institutionalize formally what President Obama and Attorney General Holder have said publicly that the Justice Department will not prosecute any reporter for doing his or her job. The department should not criminalize or threaten to criminalize journalists for doing their jobs, such as calling them co-conspirators under the Espionage Act as they did Fox reporter James Rosen. This needs to be part of an established directive, not limited to the current administration.

No one in this country should ever be prosecuted for committing journalism.

AP has no political dog in this fight. It’s not about Democrats or Republicans. Our issue is freedom of the press and the rights instilled in the First Amendment that were created to hold government accountable.

If reporters’ phone records are now open territory for the government to secretly monitor, then news sources will be intimidated from talking to reporters.

Now, the AP’s not going to be intimidated but our sources will be.

And non-official news sources are critical to a free press and critical to holding a government accountable. Otherwise, you’re just going to hear from the official sources and the public will only know what the government want them to know, and that’s hardly what the framers had in mind when they wrote the First Amendment.

Now, this month’s headlines, if they show us anything, show us just how much power and information the government has and why a robust free press is more important than ever.

This issue resonates far beyond America’s borders. The freedom of press enshrined in the U.S. Constitution has been a model and an aspiration for nations and people around the world.

The DOJ’s actions could not have been more tailor-made to comfort authoritarian regimes that want to suppress their own news media. “The United States does it too,” they can say. It should not be this way.

A free and independent press is fundamental to a functioning democracy. It differentiates democracy from a dictatorship. It separates a free society from tyranny.

The First Amendment is our collective covenant that freedom will flourish on these shores. We should all be concerned by the apparent failure by the Justice Department to recognize how its actions threaten that fundamental freedom.